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Excessive alcohol consumption and the rights of a foetus

The Court of Appeal has ruled that a seven-year-old girl born with learning difficulties because her mother drank heavily while pregnant is not entitled to compensation. The court had to determine whether the harm caused by excessive alcohol consumption amounted to causing criminal injury to the child.

CP was born in June 2007 to a young woman with alcohol addiction. In November 2009, an application was made under the Criminal Injuries Compensation Authority (CICA) scheme on behalf of CP by her local authority. CICA held that CP was not entitled to claim compensation after being born with Foetal Alcohol Spectrum Disorder (FASD) following her mother's excessive alcohol ingestion during pregnancy.

CP appealed to the First-Tier Tribunal, which found that CP had sustained injury contrary to Section 23 of the Offences against the Persons Act 1861 (OAPA).

An offence under Section 23 will be committed if a person unlawfully and maliciously administers to or causes to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm.

It was accepted for the purposes of the appeal that some elements of Section 23 are satisfied. The mother had administered to CP a poison or other destructive or noxious thing by reason of the excessive quantities of alcohol she had consumed. A key issue to be determined by the court was whether CP was ‘any other person’ under the OAPA given that she was a foetus at the time.

The Upper Tribunal allowed the CICA's subsequent judicial review claim and held that CP was not entitled to compensation because she was not ‘any other person’ within Section 23 of the OAPA.

Judgment of the court

The Court of Appeal dismissed CP’s appeal. Lord Justice Treacy stated that for a crime to be committed an ‘essential ingredient’ was ‘the infliction of grievous bodily harm on a person’ and it would not suffice if that grievous bodily harm was inflicted on a foetus.

Lord Justice Treacy conveyed that the central reason for dismissing the appeal was that ‘a mother who is pregnant and who drinks to excess despite knowledge of the potential harmful consequence to the child of doing so is not guilty of a criminal offence under the law if her child is subsequently born damaged as a result’.

The court further held that damage caused to the unborn baby by heavy drinking was inflicted at an early stage of the pregnancy when the child did not have a separate existence under the law. The time, at which harm occurred, CP was in the womb and did not have legal personality so as to constitute ‘any other person’.

Lord Justice Dyson said that: ‘Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so.’ The relationship between a pregnant woman and her foetus is an area in which Parliament has made limited intervention. Lord Justice Dyson considered that ‘the court should be slow to interpret general criminal legislation as applying to it’.

Comments on the ruling

It is doubtful whether criminal proceedings against mothers would truly be helpful in reducing the number of children suffering from FASD. It would be problematic for Parliament to introduce legislation that would adequately and reasonably police excessive alcohol consumption by pregnant women. The decision of the Court of Appeal has been welcomed by campaigners who warned the case might set a precedent for the criminalisation of drinking during pregnancy.

There is a difficult balance to strike between law and morality, hence Parliament’s limited intervention on this contentious topic. The decision should not be regarded as a license to drink excessively whilst pregnant, as it does raise awareness of the consequences such actions have on a foetus. Practitioners aware of pregnant women drinking to excess might still reasonably have safeguarding concerns as this behaviour could impact upon existing children, or the care of the child itself once born.

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